Specialized Mediation

  • October 01, 2017
  • Audra Bayer

Empowerment – generating options, safeguarding the right to choose

Alterative Dispute Resolution processes breathe flexibility and hope into the legal process. This is particularly relevant in conflicts where there are concerns about power imbalances. Dr. Julie MacFarlane notes:

“… there is a heated debate about the appropriateness of mediation for family disputes, much of which focuses on the systemic power imbalance between men and women in many family relationships... On the other hand, it is also argued that a consensual process in which both process and outcome can be controlled by the parties themselves is more suitable for resolving acrimonious interpersonal issues than an adjudicative one.” (Dispute Resolution, Readings and Cases).”

Many of my cases include addiction or family violence as factors, the result of a natural progression in my professional life which is rooted, most notably in that my children and I are survivors of family violence. 

A significant struggle I’ve experienced both personally and professionally, is the view that mediation is not (which is different than “may not be”) an appropriate process where family violence is a factor. In my personal experience, I was never asked what I thought would be appropriate for me and my family. I was told by well-intentioned professionals what process was best for me.

As the litigation was initiated, the pattern of controlling and coercive behavior, incidents of violence, and breaches of the protection order escalated. I felt vulnerable and demeaned by the assumption that as a survivor of abuse I had somehow lost all of my power; my ability to advocate for my own best interests and those of my children; and that I had no option but to resolve my conflict which was already fraught with shame in a public forum, and particularly so given that all of this would play out in my professional backyard.

Power is not a measurable quantity. Concerns regarding power imbalances can be addressed, however, where:

  • there is screening;
  • the professional has relevant training;
  • the professionals are live to safety (emotional and physical) and process issues;
  • where the individual chooses mediation and is able to negotiate effectively and productively, safely, voluntarily and competently toward a fair agreement, that choice should be effected. 

This does not translate to an equal sharing of power, but ensures each party has an adequate power base to allow them to be heard and to resist any solution that fundamentally violates their interests. Some believe that legal advocacy may yield a superior outcome but this is contradicted by the experiences of many survivors.

Professor Nicholas Bala (see full article for reference), in advocating for a differentiated approach, states:

“There is a need for all professionals who work with families affected by separation and divorce to have knowledge, understanding and sensitivity about issues of spousal abuse. There must be awareness of the different forms, nature and effects of spousal abuse, and an ability to help develop appropriate, differentiated responses, in particular in regard to children.”

Salem, Milne & Koeffler have stated what is, in my view, the strongest argument for advocating a differentiated process for high conflict family cases where family violence or other power imbalances are present and which will not further victimize the victim:

“You can also help your client identify her needs and interests, empower her by encouraging her to advocate for herself, and help her make informed decisions. This may be the first time the victim has felt she had options and choices, which are empowering. Having the options to mediate or not and to accept or reject a proposal are basic principles of mediation.”

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Audra Bayer is a mediator, lawyer, arbitrator, mother and survivor of family violence, practicising with the firm of MacLean Law.